Marriage made the Smiths a family of eight — Tillia came with five kids, and Travis with one. As 7-year-old Margot, one of two additions to their brood since then, burrowed between them on the sofa, Tillia laughed, “We’re a Brady Bunch.”
Tillia recounted the couple’s decision to grow the family to nine, then ten.
”We were like, ‘Are we going to do this thing again? Are we going to have one together?’” she said. “Since I had had my tubes tied in my first marriage — because you don’t think you’re going to have a divorce, and then want more kids — really IVF was the only way to do it.”
Like nearly half of the state, Tillia and Travis Smith are members of The Church of Jesus Christ of Latter-day Saints — a faith that teaches adherents that they are commanded to “multiply and replenish the Earth.” They also are among thousands of Utahns who have turned to assisted reproductive technologies like in vitro fertilization to realize that charge.
“We are a faith that promotes family, and that wants to have large families — it’s common to have a large family,” Tillia said. “Some people have to have help to get there.”
Whether families like the Smiths will continue to have access to IVF has come into question in the two years since the U.S. Supreme Court overturned Roe v. Wade, the 50-year-old precedent that protected abortion as a constitutional right, in Dobbs v. Jackson Women’s Health Organization.
Now, as states are left to make reproductive health policies, Utah currently bars abortion after 18 weeks and a near-total ban on abortion is making its way through the courts. It’s also a state where voters have yet to see a question pertaining to abortion access on the ballot, and candidates running for office in solid-red Utah are largely avoiding talking about reproductive health care.
Travis Smith, who previously worked as a lawyer helping health care providers navigate complex regulations, is among the exceptions.
He is competing as a Democrat for a spot in the Utah House of Representatives because he worries that the supermajority Republican Legislature has a pattern of “pandering to the far end of the political spectrum” — including in its decisions about access to reproductive health care.
“I have six daughters now, and I worry a lot about what the world looks like for them in the future,” Travis said. He added: “At some point, I’m sure statistically, some of our kids are going to have fertility challenges. I want them to be able to take advantage of this tool that has given us such joy.”
Is IVF a 2024 election issue?
All of the states that former President Donald Trump won in 2020 have abortion restrictions on the books — some trigger laws, others new regulations — that have taken effect since the 2022 Dobbs decision.
Among those states, Utah has the highest rate of children born using assisted reproductive technologies. Approximately 2.5 of every 100 babies born in Utah were conceived through assisted reproductive technology, according to the Centers for Disease Control and Prevention.
With weeks to go before the November election, The Church of Jesus Christ of Latter-day Saints reaffirmed its position on abortion politicking: “As states work to enact laws related to abortion, Church members may appropriately choose to participate in efforts to protect life and to preserve religious liberty.”
Meanwhile, the church’s policies characterize IVF as “a personal matter that is ultimately left to the judgment and prayerful consideration of a lawfully married man and woman.”
Sara Mecham, the marketing director for Utah-based Fertility Connections, which offers support to people navigating infertility, said she saw a surge in concern around access to IVF after an Alabama Supreme Court decision in February. Justices there ruled that parents of unintentionally destroyed embryos could sue because a wrongful death law “applies to all children, born and unborn, without limitation.”
The decision continued, “That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding ‘unborn life’ from legal protection.”
Alabama’s Legislature later passed a law shielding fertility clinics from legal liability.
Mecham added that “mild” worry about the future of IVF briefly reemerged in Utah amid coverage of the presidential election. Trump has said he would not restrict fertility treatments and would work to make them more affordable, which conflicts with stances his running mate has previously taken against IVF.
The Republican nominee for president has shifted policies and talking points on reproductive health policy numerous times throughout his political career.
“The overall tone of our community is no longer a fear for treatment in Utah, but a general awareness of the national implications that are at play,” Mecham said.
In a Utah Foundation poll of voters this spring, respondents indicated that abortion policy and women’s rights were of “medium importance,” and on average ranked them 14th on a list of concerns. The issue was bookended by crime and residential density.
Reproductive rights also appear to be a lower priority for candidates competing for a seat in the Utah Legislature. In an analysis of campaign websites for the 165 candidates running, The Salt Lake Tribune found 40 — just under a quarter — mentioned their views on reproductive health policies.
Women were more likely to discuss their positions on such issues, with 32% of female candidates including them versus 21% of male candidates. Democrats were slightly more likely than Republicans to talk about those policies, with three-quarters of a percentage point separating members of the two parties.
Republicans who brought up reproductive health policy on their website, in every case, stated their opposition to abortion. None of them explicitly talked about fertility treatments.
As a Latter-day Saint, Travis Smith says on his website that he is “personally against elective abortion. However, I also believe in agency and individual liberty. The government should not be involved in personal medical decisions.”
He continued, “In vitro fertilization (IVF) and other fertility treatments have faced government encroachment in several states. I worry that similar restrictions could be proposed in Utah, and if they are, I will strongly oppose them. For me, this issue is personal.”
In recent years, some Utah Republican lawmakers have proposed and supported legislation that expands insurance coverage for IVF. Among them was Rep. Candice Pierucci, the head of the political action committee Republican Women Lead. In a text, Pierucci said, “Republicans are, and have been, very supportive of expanding access to IVF and helping families in our state.”
Although, not all Republicans running for the Legislature are on the same page. Answering survey questions posed by The Tribune, multiple male Republican legislative candidates expressed interest in regulating IVF treatments.
“Should there be other restrictions on reproductive health care — especially fertility treatments like in vitro fertilization?” read the questionnaire.
“IVF should have some limitations on the maturity of fertilized eggs,” wrote Kyle Erb, who is running in Senate District 10. Another candidate, Richard Nowak in House District 25, said, “It needs regulations to ensure safety and health.”
Rep. Matt MacPherson, who is seeking reelection in House District 26, answered, “I support IVF as its goal is to create human life, there are technical advancements that would benefit this area while reducing the drawbacks.”
Smith’s opponent, Clint Okerlund, said in the survey that he is “a fan of IVF,” adding, “Abortions should [be] permitted only in cases of rape, incest, or serious imminent health complications to mother or baby.”
(Francisco Kjolseth | The Salt Lake Tribune) Travis Smith, running for Utah House District 42, talks about his campaign alongside his wife Tillia and their daughter Margot, 7, who was conceived via in vitro fertilization. The Democratic candidate discusses their journey to grow their family and the need to protect access to reproductive health care on his website.
Speaking with reporters after a debate leading up to the GOP primary election, Republican Gov. Spencer Cox pledged not to sign legislation that would restrict Utahns’ access to contraceptives or IVF.
“I think families should be able to make those decisions for themselves,” Cox said. “Our job is to protect the sanctity of life, and I think we’ve been able to do that in a very smart, compassionate way with the laws we have on the books.”
What comes after Roe?
With Roe undone, some on the right have shifted their efforts to restricting IVF, with preferred policies ranging from limiting the number of embryos that can be created to banning the practice entirely.
While IVF is widely considered one of the most effective assisted reproductive technologies, it is an expensive and grueling process.
Women are injected with hormones to encourage a large number of eggs to mature simultaneously for ovulation, rather than the typical one. Then a needle is inserted into the ovaries to retrieve the eggs.
After the eggs are fertilized and become embryos, one or more is inserted into the uterus using a syringe. Successful egg retrieval and fertilized ovum development can yield several embryos.
“It’s so painful, it’s so taxing on a woman’s body,” Tillia Smith said. “Just the hormonal treatments … we’ve got pictures of how many shots, of all the needles we would stack up.”
IVF is used for numerous reasons, including to treat infertility, help parents avoid passing on genetic problems, preserve fertility for patients with cancer and for same-sex couples to have children.
Not all embryos survive the development process. Extra ones are often frozen for future use, while others are sometimes given to other couples hoping to start or grow families, or donated to an academic research institution. Some choose to discard their embryos.
One policy proposal anti-abortion groups are eyeing is restricting how many embryos can be created to reduce the likelihood of there being leftovers.
In a recent op-ed, Live Action CEO Lila Rose called IVF “an industry built on the destruction and freezing of countless embryos — each one a human being.” And a January comment submitted by the anti-abortion think tank Charlotte Lozier Institute to the CDC urged it to “limit, report, or regulate the number of living embryos destined for research and destruction.”
Earlier this year, elected delegates in the Utah Republican Party who call themselves abortion abolitionists attempted to pass a resolution urging lawmakers “to enact legislation to abolish in vitro fertilization,” and amend the party platform to call for “equal protection laws for preborn children from the moment of fertilization.”
Without giving a reason, leadership did not add the proposals to the agenda for the party’s April convention.
Alabama is not the first state to see IVF access threatened — Louisiana has for decades prohibited the disposal of embryos within its borders. Reproductive rights advocates worry abortion bans and laws that recognize fetuses as people could be interpreted to have a similar effect in other states.
As currently written, Utah’s near-total ban on abortion that remains held up in court would likely not impact IVF treatments, according to University of Utah law professor Teneille Brown, who specializes in medical ethics, because it bars “termination of human pregnancy after implantation of a fertilized ovum.”
But, speaking for herself and not the university, Brown added, “It’s not like these laws are fixed. We’ve seen so much movement in this space by the Legislature, so it’s possible that they could change the law to go after people seeking IVF or reproductive care.”
(Chris Samuels | The Salt Lake Tribune) Sen. Dan McCay, R-Riverton, hosts a news conference at the Capitol in Salt Lake City, Thursday, Aug. 1, 2024. The Utah Supreme Court ruled Thursday that abortion will remain legal up to 18 weeks in Utah while the state awaits a lower court’s ruling on Planned Parenthood Association of Utah’s lawsuit alleging that a near-total abortion ban is unconstitutional.
After the Utah Supreme Court declined to lift a block on the law this summer while the courts weigh its constitutionality, Republican state Sen. Dan McCay, the trigger ban’s sponsor, indicated there will likely be more legislation restricting abortion. While responding to a question about whether the Legislature could consider a constitutional amendment, he said, “I have not excluded anything from our consideration.”
Other laws the Legislature has passed, depending on how they are interpreted, could also imperil access to IVF. Pregnancy Justice, a nonprofit dedicated to defending the civil rights of pregnant people, warned in a September report that Utah is one of dozens of states where IVF could be in danger due, in part, to laws against feticide and that treat a fetus as a person.
Utah’s homicide code allows prosecution for the “killing or attempted killing of a live unborn child in a manner that is not an abortion,” but doesn’t define “live unborn child.” Intent language associated with Utah’s abortion ban asserts that “unborn children have inherent and inalienable rights that are entitled to protection by the state of Utah pursuant to the provisions of the Utah Constitution.”
“Because this term is not defined, its application to fertilized embryos is not immediately clear. I personally think it would be very hard to argue that ‘live unborn child’ or even just ‘unborn child’ applies to fertilized embryos,” Brown said.
She added that such an interpretation would be “a stretch, … but I’ve heard people argue that embryos are alive and ‘unborn children.’”
Abortion policies could reduce access to IVF in other ways, Brown pointed out. With constantly shifting laws, cautious reproductive care facilities could start acting more conservatively than the law requires to avoid legal liability.
And researchers have found that fewer doctors choose to work in states with more restrictive abortion policies — including Utah. The number of new medical school graduates applying to Utah residency programs dropped by nearly a thousand this year.
“It might be that the same kind of thing happens with fertility doctors,” Brown said, “where they just say, this whole place is in flux and there’s just hyperregulation, and so we’re not going to go into that specialty because we don’t know what the future looks like for [health care providers’] ability to practice.”
